Haya Sardar

The appellant purchasers appealed a judgment enforcing a limitation of liability clause in a pre-construction condominium agreement of purchase and sale that restricted their damages for the respondent developer's breach to the return of deposits with interest.

The appellants argued the clause was unconscionable, contrary to the consumer protections of the Tarion Addendum, and that the respondent should have brought it to their attention.

The Court of Appeal found no error, noting that the appellants were sophisticated purchasers represented by counsel who negotiated significant changes to the agreement, and that the Tercon analysis provided an effective safeguard against abuse of limitation clauses.

This decision concerns a comeback motion on a Mareva injunction originally granted against Alykhan Karmali and AK&H Ltd. The plaintiff, Latif Nanji, alleges that he was induced to invest millions of dollars in a business venture based on fraudulent misrepresentations by the defendants.

The court reviews the background of the investments, the lack of supporting documentation, and the use of funds by the defendants.

The court finds that the plaintiff has established a strong prima facie case for fraudulent misrepresentation and that the risk of dissipation of assets justifies the continuation of the Mareva injunction.

The applicants sought damages for breach of contract after the respondent developer cancelled an agreement of purchase and sale for a preconstruction condominium unit.

The respondent argued that the applicants had waived the strict timelines in the Tarion addendum and that two of the applicants had bound the third to an amending agreement.

The court found that while the applicants were partners who could bind each other, the doctrine of waiver did not apply to extend the early termination date.

However, the court held that the contract's limitation of liability clause was enforceable, restricting the applicants' remedy to the return of their deposits with interest.

The applicant sought to schedule a motion for leave to appeal and an application for judicial review from a summary dismissal by the Ontario Land Tribunal.

The applicant requested that the leave motion, appeal, and judicial review be heard together by a single panel, relying on the recent Supreme Court decision in Yatar.

The court ordered that the motion for leave to appeal be heard first by a single judge, to respect the legislative deference implicit in the leave requirement, with the judicial review and potential appeal to follow if leave is granted.